Barrier or Bargaining Chip? Navigating and using workforce regulation

to your advantage

LASA National Congress 2017

Jessica FisherPartner and Aged Care Team Leader, FCB Workplace LawM: 0413 945 996 | P: 02 9922 5188 | E: jmf@fcbgroup.com.au

Josh KeechExecutive General Manager People and Culture, The Whiddon GroupM: 0400 347 336 | P: 02 9827 6610 | E: j.keech@whiddon.com.au

Objectives

• Examine key trends and game changers in

enterprise bargaining

• Assess any recent changes in attitudes and

approaches

• Consider regulatory challenges including

award limitations, the FWC approval process

and discrimination

• Explore practical strategies for overcoming

challenges

Framework

2017 Survey

• In 2015, FCB Group launched our inaugural enterprise bargaining survey for the aged care

industry

• The results spanned 45,000 residential beds and 70,000 employees, granting us a rare insight

into the bargaining trends and attitudes of the industry

• 2 years later, we have developed a second survey, designed to assess whether (and how)

those attitudes have changed

• 2017 Results covered:Bed numbers represented

Approx.40,000

Association

Membership

50%

38%

18%

3%

LASA ACSA Guild SIAG

Employees represented

Approx. 50,000 -

60,000

Organisational Representation

Sector Locations

FP 41%

NFP 59%

Services

12%18%

53%59%62%

91%

15%

47%15%

24%

71%

Victoria – 47%Tasmania – 12%ACT – 24%

Experience with Enterprise Bargaining

79%

Have conducted face-to-face meetings or engaged

in direct bargaining communications with

unions/employees

47%

Have been part of a team managing a bargaining

strategy/process

35%

Have been involved in the administration/

management of staff covered by an enterprise

agreement

3%

Have no experience with bargaining or agreements

Yes

88%

No

12%

DOES YOUR ORGANISATION HAVE A CURRENT EA?

2015 – “Yes” was 98%

Flexibility

Only

15%of providers

draft their own

agreements

Examples of flexibility

Increased

parental leave

entitlements

Domestic

violence

provisions

Other types of

additional/

extended leave

Ability to use

existing leave for

reasons

associated with

DV

Counselling

Flexing P-T

workers to

manage

workflow

Possible “dual”

roles

Dual locations of

work

Extensive,

24%

Minimal,

28%

Moderate,

48%

Level of Innovation

Extensive Minimal Moderate

Influencing Factors on Pay Rates/Increases

2015 2017

Pay Rates & Increases

Barriers to Bargaining

Union resistance Cost/resourcelimitations

Limitations in theFair Work Act

Expectations ofthe workforce

Do you believe unions…

Drive innovation, flexibility/ efficiency/

productivity?

Reduce the incidence of workplace

disputes?

Simplify / improve bargaining?

81%

85%

85%

Overcoming Hurdles

• Solution: draft an EA tailored to the business’s needs (eg demand-driven roster flexibility, additional hours for part-time employees)

• Solution: individual flexibility agreements

Barrier: Award limitations/inflexibility

• Solution: conduct employee surveys to identify the genuine concerns/ interests of the employees

• Solution: Empower and educate employees

• Solution: offer staff incentives

• Solution: good faith bargaining orders

Barrier: Union resistance

• Solution: outsource to ER experts

Employer Association

HR/Lawyers

• Solution: use the right industry templates as the sound basis for your EA

Barrier: Lack of HR resources

Innovation Examples

• Staff ratios

• Domestic violence provisions

• Workload management

• Scope and coverage issues

• Pay percentages

• Innovative clauses

Questions?

Jessica FisherPartner & Aged Care Team Leader

FCB Workplace Law

Josh KeechExecutive General Manager People and Culture

The Whiddon Group

M: 0413 945 996P: 02 9922 5188

E: jmf@fcgroup.com.auW: www.fcbgroup.com.au

M: 0400 347 336P: 02 9827 6610

E: j.keech@whiddon.com.auW: www.whiddon.com.au

Thank you